But expert says Craigslist "doesn't have that much going for them."

Craigslist is now demanding to be the "exclusive licensee" of content posted to its site, an apparent bid to strengthen its legal position against third parties that re-use the content. Last week, the classified site sued Padmapper and 3Taps, two sites that provide alternative interfaces for Craigslist data.

But two legal experts Ars Technica talked to suggest that Craigslist has a weak case. "I'm sympathetic to Craigslist, but they don't have that much going for them," New York Law School professor James Grimmelmann told Ars.

Written assignment required

Craigslist's first problem is that it is suing over content it didn't create. As we learned from the Righthaven debacle, copyright holders cannot outsource enforcement unless they transfer ownership of the copyright itself.

That's a problem for Craigslist because, until recently, the site demanded only a non-exclusive license to user content. Craigslist appears to realize this would make it difficult to sue third-party sites like Padmapper because the current version of its terms of use, dated February 2012, requires the user to "expressly grant and assign to CL all rights" to enforce the copyright. And now Craigslist is making that even more explicit with a notice directly on the form for posting ads that Craigslist is claiming exclusive ownership of users' posts.

It's not clear if the courts will interpret this as a legally binding transfer of the user's copyright to Craigslist. But even if the courts find that users did in fact transfer their copyrights to Craigslist, that's just the beginning of the classified site's legal challenges.

You can't copyright facts

Copyright law draws a fundamental distinction between ideas and their expression. So, for example, most of the information in a phone book—people's names and phone numbers—are facts that cannot be protected by copyright law.

The same point likely applies to significant aspects of a classified ad. Details such as an apartment's price, number of bedrooms, and address are facts about the ad rather than creative choices by Craigslist or its users. That means this information is likely not covered by copyright protection at all. Padmapper appears to have been careful to mind this distinction. You can look up the price and location of apartments on Padmapper, but if you want to read the description in an ad (which likely is protected by copyright), Padmapper sends you to a separate page that frames the original Craigslist ad.

Padmapper displays uncopyrightable facts such as price and the number of bedrooms or bathrooms, but requires you to visit Craigslist itself to read apartment descriptions.

And Grimmelmann tells us that Padmapper is on safe ground there because framing is clearly legal under the law of the Ninth Circuit Court of Appeals, which will have jurisdiction over the case.

Mark Lyon, an attorney based in New York, agrees. "PadMapper is simply providing a more efficient and usable interface to Craigslist itself," he told us by e-mail.

Padmapper gets its data from 3Taps, a site that collects and republishes Craigslist's content. 3Taps, in turn, says it gets its data from cached copies supplied by Google and Bing, rather than Craigslist directly. Grimmelmann told us that if this is true, then "the terms of use argument collapses," because the terms of use might be binding on Google and Microsoft, but not 3Taps or Padmapper.

Lyon agreed. "Their indexing activities seem no different than any other search engine," he said.

Craiggers on thin ice

In addition to re-publishing data derived from Craigslist, 3Taps also runs a site called Craiggers that provides an alternative interface for browsing Craigslist ads. Both Grimmelmann and Lyon agreed that Craiggers was the site most vulnerable to legal challenges.

For starters, a court could find that naming the site "Craiggers" could give the mistaken impression that the site is sponsored by Craigslist, violating trademark law. "Craiggers is skirting the line," Grimmelmann told us.

However, he said, even if 3Taps loses on the trademark argument, that won't necessarily shut the site down. Rather, they could likely get on the right side of the law by changing their name and being clearer about the fact that the site is not sponsored by Craigslist.

Craiggers is also more vulnerable than Padmapper because it reproduces full ads, including portions the courts could find are creative enough to merit copyright protection.

Bad for users

Lyon, who admits to being an avid Padmapper user, told us that Craigslist's recent behavior is bad for users. "An exclusive license is far different from what I, and many users, believe they are granting to Craigslist," he told us.

"Craigslist fails to recognize that its users gain value by having their advertisements widely distributed and searchable. Instead of working to benefit its users by developing new, innovative features itself or encouraging third-party developers to do the same, Craigslist believes it can retain its strength in the market simply by clinging to its user's content in a Gollum-like fashion."

Timothy B. Lee
Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times. Emailtimothy.lee@arstechnica.com//Twitter@binarybits

72 Reader Comments

Sounds like crags list needs to expand it's services. Don't like pad mapper using your stuff? Do what pad mapper does, but better and on your site, and I bet pad mapper isn't going to be a problem anymore. Make your site easier for users to navigate, and more difficult for data mining. Start posting ads as images. Either way, this is not the best way to stay relevent much less compete.

Let's say that I put an ad on Craigslist to sell my guitar. I want to maximize my chances of selling it. I would copy paste the ad onto other classified sites (say kijiji for instance). If I'm granting CL an exclusive license, then this behavior is copyright infringement. I'm infringing copyright because I want to maximize the exposure of my ad. This leads to an absurd conclusion that just can't e supported.

I'm 100% behind Craigslist here. If I wanted my ad up somewhere else, I'd put it up in that other place. As a poster, I made a conscious decision to put it on CL as opposed to other sites. I have no issue w/ CL changing it's terms so that other's can't scrape their ads.

If CL is so awful, why is it so popular? Sure, Padmapper was OK, and if CL came out w/ a product like that, I might use it. But I posted to CL knowing that there was no product like that, and still made the call. If I wanted that mappy interface, I could have just as easily posted the ad to Trulia.

I think it's fitting to compare CL ads to the newspaper classifieds they ate. If I put a classified in the VillageVoice, no one would say that the Daily News would have the right to go and copy and reprint that ad w/out the explicit consent of me and/or the VillageVoice.

What CL is doing makes sense. If folks hate their old skool interface so much, then stop using the site, and go over to some alternative. There are plenty.

I think what CL should do is implement and option like they have for 'contacting the poster for other reasons.' If I had an option when I posted to either allow my ad to be scraped by 3rd parties or not, I think that would solve the issue.

Either way, this google cache thing is BS - the equivalent of taping a movie in the theatre and then saying that recording is not the movie...

So, I give Craigslist full ownership of my posting. Does that mean I can't change the wording, I can't withdraw it, I can't post it to another site, and (most importantly) I can't be held responsible if there's something amiss with the text, because I don't own it.

Does this open the door for all sorts of mischief with no consequences?

Just because I click I accept does not mean I agree. I am just clicking what I have to, to get to the next page. Software does this all the time to install it. I don't think being forced to agree is a true agreement. i don't give my right up for anyone. I believe in sharing. I am not a troll like everyone else is. Seems to be a new wave of douche baggery. Everyone is trolling what is wrong with people.

Not all the ads on CL are for sale. Ideas get posted there too. Rant raves section for example, where insane people post.

I smarter move would be to buy up these innovative sites and roll their tech into CL.

While I am fond of CL retro-styling and lack of bells and whistles, there's things that CL does not provide that's frankly functional and vital — mapping, for instance. I use an app called Craigspro to find garage sales in my area on a map; CL provides nothing like that.

While I am fond of CL retro-styling and lack of bells and whistles, there's things that CL does not provide that's frankly functional and vital — mapping, for instance. I use an app called Craigspro to find garage sales in my area on a map; CL provides nothing like that.

But mapping is a bell/whistle

You're right though. They should be bringing this stuff in to the main site. Not relentlessly holding the site back and keeping the 1999 era interface, and taking anyone that tries to make it modern down.

I'm 100% behind Craigslist here. If I wanted my ad up somewhere else, I'd put it up in that other place. As a poster, I made a conscious decision to put it on CL as opposed to other sites. I have no issue w/ CL changing it's terms so that other's can't scrape their ads.

If CL is so awful, why is it so popular? Sure, Padmapper was OK, and if CL came out w/ a product like that, I might use it. But I posted to CL knowing that there was no product like that, and still made the call. If I wanted that mappy interface, I could have just as easily posted the ad to Trulia.

I think it's fitting to compare CL ads to the newspaper classifieds they ate. If I put a classified in the VillageVoice, no one would say that the Daily News would have the right to go and copy and reprint that ad w/out the explicit consent of me and/or the VillageVoice.

What CL is doing makes sense. If folks hate their old skool interface so much, then stop using the site, and go over to some alternative. There are plenty.

I think what CL should do is implement and option like they have for 'contacting the poster for other reasons.' If I had an option when I posted to either allow my ad to be scraped by 3rd parties or not, I think that would solve the issue.

Either way, this google cache thing is BS - the equivalent of taping a movie in the theatre and then saying that recording is not the movie...

I am 1000% against you here. If I want to sell my shit, I should be able to advertise wherever the fuck I can. Do you honestly believe that NBC should be allowed to force Budweiser to enter into an exclusive licensing agreement, allowing them to not put their ads on other networks?

I don't care how good or bad CL is; that's irrelevant. What is relevant is that I should have ownership over my ad, not CL.

Interesting to see the legal cases laid out but there is no doubt this is bad for users.

While I admire certain aspects of craigslist, their old fashioned interface and lack of interest in profit what they've done is cornered a very important market and essentially imprisoned it in the dark ages. It was already frustrating to watch and now it's even worse that they're sniping the other companies that sprung up to help fill in the gaping void that they chose to leave open.

As a landlord in a market where the dominant method of finding tenants is using Craigslist, I am quite disappointed in these activities. I DID want the broadest possible distribution of my ads, and padmapper was good for my business. The area I am in is rife with keyword spam which makes it much harder to find rentals in the right area. (Apartments miles away or in bad neighborhoods are labeled "close to <my neighborhood>".) Also, padmapper's median calculation algorithm is helpful to set my prices by.

Unfortunately, I won't be able to just divert my potential customers to another site, I will have to live with whatever happens here.

Does Craigslist realize that they are most likely giving up their DMCA safe harbor by doing this? One would think that they've had enough trouble over their adult section to be aware what that safe harbor affords them. To willfully give that up by claiming ownership of all the adds (not 3rd party content anymore) makes them a sitting duck liability wise.

Stole the words from my mouth, I understand that due to having both California and Washington state that you get a lot of activity from constituents, but how many times have SCOTUS slapped down something that came through the 9th circuit?

Just because I click I accept does not mean I agree. I am just clicking what I have to, to get to the next page. Software does this all the time to install it. I don't think being forced to agree is a true agreement. i don't give my right up for anyone.[...]

Sorry, but you are wrong. "Click-through" licensing agreements are legally binding as long as they display the actual license (not a link to it) on the page with the "Accept" button. This is why they are used.

I think it's fitting to compare CL ads to the newspaper classifieds they ate. If I put a classified in the VillageVoice, no one would say that the Daily News would have the right to go and copy and reprint that ad w/out the explicit consent of me and/or the VillageVoice.

If it's is just factual information, sadly, anyone could copy your ad a repost it however they want, even change the words! You don't get control over information that's been released for the world to see. When you released information publicly, you gave up your right to decide who gets to see it and how. In your example Daily News would NOT scape classified ad from other papers, two reasons come to mind. One is because it is counter-productive to making profits for standard newspaper models. Daily News would not scrape classifieds from other papers, because they are not getting paid for printing those classifieds. It does not make sense that posting your classified ad to VillageVoice for cheaper than Daily News charges, will still get your ad in Daily News. If news papers worked differently, and the paper cost more to make up for the lack of income from submitted classifieds, it could definitely scrape from other sources, although the other extreme of charging nothing for the print and charging the classified ad submitters for their income is more common. The other issue which is minimized by the internet is the disadvantage of the delay, for papers, you would be at best half a day off if you printed for evening circulation, and an entire day if you were a morning paper.

Just curious, what if the original poster doesn't wish their advertisement to appear on services other than Craigslist? E.g. let's say in the case where such Craigslist skimmers either misrepresent information regarding the product (e.g. pricing, specifications, etc.), contact information (e.g. phone number or address), or claim ownership of parts of the original advertisement (e.g. of pictures utilized).

Do the original posters of such information/content have any legal rights to prevent skimmers from doing this (even if on a case-by-case basis) or at least from doing this incorrectly?

Edit: For clarification, by "original poster" I intended to reference the person(s) who originally placed the advertisement on Craigslist.

I think it's fitting to compare CL ads to the newspaper classifieds they ate. If I put a classified in the VillageVoice, no one would say that the Daily News would have the right to go and copy and reprint that ad w/out the explicit consent of me and/or the VillageVoice.

And as several people already argued in the comments of the first article and the whole article this time is about: You can't copyright facts. You can only copyright creative creations.

"X rooms, Y USD/month, at Z street" is under no stretch of the word creative and warrants copyright.

Having exclusive ownership can make Craigslist liable for the posts of its users. For example, Craigslist may be sued for libel, housing discrimination, pimping, fraud, and copyright infringement if its users post defamatory comments, racially selective apartment rentals, escort services, stolen goods, and counterfeit goods listings.

Having exclusive ownership can make Craigslist liable for the posts of its users. For example, Craigslist may be sued for libel, housing discrimination, pimping, fraud, and copyright infringement if its users post defamatory comments, racially selective apartment rentals, escort services, stolen goods, and counterfeit goods listings.

I would absolutely love to see this used against Craigslist if they're going to pursue suits against scrapers and change their TOS like this. Any move by "user generated content sites" to seize control of content from the users is a bad move in my opinion. Not just from a legal standpoint.